European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019

Lord Pannick Excerpts

Wednesday 27th March 2019 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, Members of this and the other House have spoken of their shame or embarrassment about how the Prime Minister and the negotiators she appointed, Messieurs Davis, Raab and Barclay, have handled our dealings with the EU. Today’s statutory instrument is a manifestation of their failure. The Prime Minister has failed to unite her Cabinet, her Government, her party or the Commons, let alone the country. It starts with red lines and a failure to reach out to the 48%. It ends with a lonely, tax-funded, failed plea to the public and the humiliation of eating hundreds of her words. Those words, “We are leaving on 28 March”, have been repeated endlessly by Mrs May and here by the noble Lord, Lord Callanan, for whom some of us —almost—feel sorry, for having to digest the words he parroted so many times.

The noble Lord’s embarrassment, which he carries with a good grace, is as nothing to the uncertainty now facing our ports, businesses, holidaymakers, citizens living across the EU, farmers, importers, manufacturers, traders and hospitals, and EU citizens here. Today, they see us changing our law, not simply to remove Friday’s date from the statute book but to insert two new dates. It still is not clear when we are due to leave the EU. It is almost beyond parody. I now wonder what phrase the Minister will use to replace the old mantra. Will it be, “We will leave on a date yet to be confirmed,” or “We will leave, don’t know when, don’t know how”? Perhaps we will meet again some sunny day.

Today’s change via this SI is, of course, necessary, but it would have been unnecessary had the Government heeded the advice of your Lordships’ House. In May last year, the amendment proposed and so convincingly argued by the noble Duke, the Duke of Wellington, replaced 29 March with the words,

“such day as a Minister of the Crown may by regulations appoint”.

My colleagues behind me have begged me not to use the words “I told you so” today, but I cannot resist. In May, I warned the Minister that,

“the negotiations … will be affected by the timetable”,

and that, given that,

“the negotiations could go on a bit later than everyone wants”,

having a particular date fixed in an Act of Parliament, passed in mid-2018, would be,

“a very unhelpful position for our negotiators to be in”.

I predicted—I promise these are my words in Hansard—that,

“the withdrawal agreement could contain a leaving date of a week or two … after the two-year period, which would allow the last-minute arrangements to be made”,

and continued,

“if that suits all the parties and if our Government would like to sign up to it, it would seem silly not to be able to do that”,—[Official Report, 8/5/18; cols. 37-38.]

without amending the Act.

Of course, it was not just me. Our own EU Committee said:

“The rigidity of the … deadline of 29 March 2019 … makes a no deal outcome more likely … enshrining the same deadline in domestic law would not … be in the national interest”.


Your Lordships agreed. By 311 votes to 233, we passed the amendment tabled by the noble Duke, the Duke of Wellington, by a tidy majority of 78. We are here today because the Government did not listen.

Unfortunately, we now face the same again, which is why the last part of our amendment calls on the Government to pursue any course of action in those negotiations sanctioned by a resolution of the Commons. We stress this because Ministers and Mrs May keep telling us that they will not be bound by today’s votes in the elected House, which might be a bit of a problem for them anyway, if Robert Peston is correct. He reports that the Cabinet Secretary and the Attorney-General informed Cabinet that if, at the end of the Letwin process, MPs passed a Motion mandating the Prime Minister to pursue a new route through the Brexit mess, whether a referendum, a customs union or another option, then the Prime Minister and the Government would be in breach of the Ministerial Code and the law if they failed to follow MPs’ instructions. The impression created by the Prime Minister that she could ignore the results of the indicative vote process is not true if those Ministers who briefed out of the Cabinet are to be believed. Perhaps it is because those briefings are right that the Government down the other end have just tried, shamefully, to end the indicative vote process, although they lost that vote. It is that reluctance to heed the views of MPs that makes the last part of our amendment so important, even if, as I said, it might be unnecessary should the law indeed require the Government to follow the outcome.

[Lord Pannick (CB)]

Could the noble Baroness say what law is applicable here? I understand the political argument, but what law would compel the Prime Minister to comply with the House of Commons’ view?

[Baroness Hayter of Kentish Town]

Indeed, I am as questioning on that. That apparently, from very good leaks, was what the Attorney-General said to the Cabinet. Unfortunately, I do not have access to it. It may not be the case, but that is what was being briefed—I do not think that the Attorney-General will be speaking utter nonsense, which is what I think I heard from the other side of the House. It is what Robert Peston says.

--- Later in debate ---

[Baroness Ludford]

It is that, rather than with anything I have said.

I noted that while on Monday there was an insistence from the government Benches that this decision by the European Council represented international law, at least by yesterday things had moved on somewhat when the noble Baroness the Leader of the House referred to EU and international law. I am, however, puzzled by her insistence that the European Council decision and the UK’s agreement to it constitutes a binding agreement in EU and international law. It seems to me that that decision is simply a binding legal act under EU law, to which the UK is now and at least until 12 April subject. It just seems to be difficult for the Government to straightforwardly acknowledge this, presumably for political reasons.

I am sure that the noble Lord, Lord Pannick, will speak to the issue that he raised yesterday about the legality of the two alternative exit dates and I will leave that to him. From these Benches, we can accept the convenience of needing only one statutory instrument, and not potentially two, to cover both the scenarios envisaged in the European Council decision.

Finally, I want to ask about the position on the European Communities Act. I cannot remember whether I asked this yesterday or the day before. The Explanatory Memorandum to the present regulations says:

‘“Exit day’ is the day by reference to which provisions of the 2018 Act, including the repeal of the European Communities Act 1972 … take effect or come into force”,


but that is not my understanding. The European Union (Withdrawal) Act says that the repeal of the European Communities Act takes effect on exit day. My understanding is that an SI is needed to bring that into force; indeed, the briefing from the Library says:

“This provision of the EUWA”—


namely, the repeal of the European Communities Act—

“has not yet been brought into force”.

So even beyond exit day, unless there is an SI to bring into force the repeal of the ECA, the ECA will continue. Can someone explain how that interacts with these regulations? Even if you change exit day, do you still need an SI to bring in the repeal of the European Communities Act? I look forward to the clarification which I am sure the noble and learned Lord, Lord Keen of Elie, who is looking impatient, will be able to give me.

[Lord Pannick]

My Lords, I support the Motion in the name of the noble Lord, Lord Callanan, and I thank him for addressing the legal question I raised yesterday. I am satisfied that these regulations are valid; the legal issue is whether exit day is specified in the statutory instrument when it refers to two possible dates. I agree that that is so: it is specified, and for this reason. It seems to me that the purpose of the power to amend the date of our exit, as expressly stated in Section 20(4)(a) of the 2018 Act, is to ensure that domestic law on exit day is consistent with our treaty obligations. This SI accurately implements in domestic law the current treaty obligations in the light of the extension of the Article 50 period. Unhappily, that still involves more than one possibility as to the future, and the SI accurately reflects the reality under EU law.

There is a risk that a court might take a different view on the validity of the SI; I would not expect it to do so. I am, however, surprised that Ministers did not adopt the simpler, risk-free option of specifying 12 April as exit day, since they have ample powers further to amend exit day if appropriate. That is especially so when there is a third possibility recognised under the EU decision to which the SI refers. The EU decision says that if the withdrawal agreement is not approved by the House of Commons by this Friday, the Article 50 period is extended until 12 April. It adds:

“In that event, the United Kingdom will indicate a way forward before 12 April 2019 for consideration by the European Council”.


If that occurs, and if agreement is then reached on the way forward, it may involve an exit day different from either 12 April or 22 May: that, of course, would require another SI.

I understand that the noble and learned Lord, the Advocate-General for Scotland, will be replying to this debate for the Government. I have a question for him which builds on the question put at the end of her speech by the noble Baroness, Lady Ludford. As a matter of domestic law, exit day is highly significant under the 2018 Act for various purposes, but one of the central functions of exit day is given accurately in paragraph 6.5 of the Explanatory Memorandum:

“Section 1 of the 2018 Act repeals the European Communities Act 1972 on ‘exit day’, whilst the saving and incorporation of EU law into domestic law (known as “retained EU law”) … take effect on and after ‘exit day’”.


Various provisions of the 2018 Act were brought into force under Section 25 of that Act when it was passed. Those provisions include Section 20, which defines exit day and confers the power exercised in this statutory instrument to amend exit day. Also commenced and brought into force when the 2018 Act was passed were Sections 8 to 11 and other provisions which confer powers on Ministers to make regulations such as those we have been scrutinising in recent weeks. There have also been more recent commencement regulations, such as SI 808/2018, which provide for the bringing into force of other provisions of the 2018 Act.